The biggest TOS offenders (part 1)

What does Apple, Facebook and 1&1 have anything in common? Unfair clauses hidden beneath their Terms of Service. We have exposed the hidden cases for these and other companies.

Terms of Service texts are strenuous to read - true. But ToS texts are naturally so, because they have to explain, in detail, what one must agree to when using a particular service. This is not always something good, as it sometimes hide additional costs, unfair clauses and a restriction to consumers rights. The clauses that we expose here with the help of attourney Hagen Hild are barely valid legally. That means that they're doubtful and must be replaced by better legal guidelines. You must therefore not accept everything that appears in the ToS, but demand your right from the providers. In our ToS check, the parties that are especially negative are IT Giants like Apple, Facebook and others that seldom follow certain laws and as well as certain DSL and mobile operators. You should be careful with these.

1.     Passing on personal data/

Google, Facebook, Amazon, Twitter, Dropbox

Whoever uses web services like Facebook or Google reveals detailed personal information to these companies. This data is gold for the companies and are passed on further to advertising companies without concretely naming these companies. And that totally contradicts the most data protection rights that basically does not allow any passing on without the expressed permission of the user. For Google: it lies in discretion of the company to whomever they pass on the user data (see quote above). This reference alone that can be found even on Facebook or Dropbox is not enough because the missing transparency already violates the data protection law. In principle, only anonymous data may be passed on without consent, not personal data like name, mail addresses or even IP addresses. The same even applies to photos or videos uploaded by the user. Facebook, Twitter or YouTube gives away the right to use these images elsewhere (under licensing). With this, user content and status updates can be given off without the knowledge of the user.

Google - trustworthy companies or people may receive this information to process the [sensitive] person-related data [...].

2.     Hidden costs/

1&1, Amazon, maxdome, travel portal, online shops

DSL provider 1&1 is one of the largest offenders. According to Hagen Hild, that grants the right to change prices as they like even after end of a contract. Such price increment clauses are unauthorised if neither the reason nor the extent is mentioned in the ToS. Online shops however put a disadvantage to the users often with high costs in their ToS, like fixed interest rates for defaulters (five percent for Amazon) or returning costs that the customer must pay. That is not always prohibited but quite surprising if the ToS is not read well enough. All-inclusive fees as per BGH are however definitely unauthorised for return debit notes like the online video library Maxdome, fixed for 10 euros (RM40). Typical cost cases are also additional price rise when you have booked a flight early or cancellation fees that amounts to the whole 100 percent a week before the journey. Such packages are controversial as the tickets can be resold in a short while and so the damages are not so high for the vendor.

1&1 - decides the payment by the respective latest price list after fair discretion

3.     Refused revocation right/

 Apple Store, online shops

The Apple store shows a typical trick to cancel ToS regulations what they call revocation rights). If seen individually, the clauses are authorised as attorney Hild is highly skeptical about in the combination. This way, Apple gives in the ToS of the store to manufacture ordered products within 14 days. That reads as if the user would give products in the shop in their specific configuration specifically in the order. In the revocation instruction Apple then excludes the revocation right for products that are manufactured according to customer specifications. According to Hild, it's a skillful attempt to remove the revocation right by a combination of individual correct clauses - but nevertheless unauthorised. You naturally have a revocation rights of 14 days while ordering these devices.

Apple Store - A revocation right does not exist [...] for delivery of products that are manufactured according to customer specifications